Volume 89

Professor Negretto seeks to explain seemingly contradictory trends in constitutional design in Latin America. Professor Negretto argues that these trends reflect diverse governance problems and the varying interests of those who influence institutional selection. Professor Negretto identifies several reforms “intended to diffuse power and place limits on the partisan or government powers of presidents,” and these are contrasted with other reforms.

Part I begins by reviewing recent constitutional transformations in Latin America. Although Professor Negretto emphasizes that there is substantial variation in these reforms, he identifies several trends in their orientation. In the sphere of election rules, Professor Negretto identifies trends such as pluralistic rules for the election of deputies and presidents, personalized voting systems, and more permissive rules of presidential reelection. In the sphere of decision-making rules, the trends include greater restrictions on the government powers of presidents and stronger legislative powers for presidents.

In attempting to explain the contradictory nature of these trends, in Part II, Professor Negretto proposes a two-level theory of constitutional choice. This theory is an attempt to integrate cooperative theories and distributional models. Neither theory, according to Professor Negretto, sufficiently explains the constitutional choices seen in Latin America. According to his theory, “constitutional choice is endogenous to the performance of preexisting constitutional structures and to the partisan interests and relative power of reformers.”

Finally, in Part III, Professor Negretto applies his theory. He argues that “in the presence of distributive outcomes, strategic political actors always tend to propose or support alternatives of reform that, within the menu of options, are closer to their partisan interests.” He proposes that different results will occur depending on whether unilateral or multilateral assemblies are involved in the process. Additionally, reforms supported by different parties will be affected by their expectations for electoral power in the near future. It is Professor Negretto’s opinion that the study of reform coalitions needs to be complemented “with a process-tracing analysis of the sequence of events that cause constitutional reform and of the patterns of partisan competition that shape the expectations of the actors about their future positions.”

Professor Couso examines constitutionalism in the context of “radical democracies.” Although Couso argues that sometimes these governments should not properly be called constitutional, they still sometimes contain institutions that promote traditional constitutional ideals, such as separation of powers, an independent judiciary, and freedom of expression.

Ms. Andrea Pozas-Loyo and Professor Julio Ríos-Figueroa argue that the design of existing institutions and the political leverage of actors that do not participate directly in constitutional reform may exert an important influence on the design of institutions created by amendments. In doing so, they challenge the assumption that constitution-making processes are and must be extraordinary and are unrelated to motivations and decisions that characterize ordinary politics. The authors explain the pervasiveness of this assumption by pointing out that it is rooted in a focus on the creation of new constitutions and overlooks the process and politics behind amending existing constitutions. Pozas-Loyo and Ríos-Figueroa contend that because of this, the design of institutions through amendments will be influenced by variables that do not regularly figure in the analysis of constitution-making, and as such, the more institutional power and political leverage actors have, the more likely such amendments will reflect their interests.

Pozas-Loyo and Ríos-Figueroa suggest two implications from their claim that ordinary politics often accompany constitutional amendment processes. First, powerful judges can be expected to influence amendment processes aimed at reducing their adjudicatory powers. Second, other powerful social and political actors with leverage over representatives can be expected to attempt to influence the outcomes of amendment processes that affect their interests.

Professor Roberto Gargarella explains the tensions and implications of “unequal legal integration,” a scenario where new legal practices confront established legal infrastructure. The most important example of this phenomenon in Latin America is the incorporation of social rights into hostile constitutions.

Historically, this merger occurred in Latin America during the early twentieth century by way of grafting social rights onto liberal-conservative political consensus. Social rights were identified as objectives of the political branches, not the judicial.

The addition of new social rights changes organic constitutional structure by giving more power to the judicial branch, whether or not it is used. Examples in Argentina and Colombia suggest that scholars pay insufficient attention to the internal implications of social reforms, even though they are perfectly foreseeable. This fact is particularly pressing in light of the points of merger between models for different constitutions—conservative, liberal, radical or otherwise. For instance, judicial constitutional review embraced by liberal and conservative constitutions may see less conflict when the parameters of the constitutional review are specifically defined to satisfy the preferences of both camps. On the other hand, introduction of social rights into a liberal–conservative scheme that rejected those rights during the constitutional conventions of the nineteenth century may more seriously challenge the institutional framework subject to the imposition of the social rights.

As a result, the failure of reformers to anticipate and facilitate the inclusion of new social rights into constitutional infrastructures has resulted in some social rights falling into a “constitutional slumber.” Not only does the institutional infrastructure sometimes resist actualization of the new social rights, those social rights are ineffectively or unpredictably reawakened in the future. This flexibility is both a tool and a liability for the future pursuit of new social rights: it may mobilize groups around progress, but it may also be an exercise in futility.

Judge García-Sayán lauds the influence of the Inter-American Court on domestic Latin American judicial systems. Domestic courts of Latin American countries serve not only as guarantors of the international obligations of states, they also legitimize and revitalize the rule of law by harmonizing international standards and their domestic law. Four examples demonstrate this advance: amnesties, investigation of human rights violations, the right to an effective remedy, and rights of indigenous peoples.

With regard to amnesty, the Inter-American Court case of Barrios Altos has a significant impact on the ability of violators of international human rights laws to excuse their own behavior. Of course, trial and conviction of Peruvian criminals throughout the Peruvian justice system was one result, but Barrios Altos also established interpretive parameters for analysis of amnesty provisions in Chile, Argentina, Colombia, and Uruguay.

With regard to investigation of human rights violations, the consistency of the Inter-American Court’s jurisprudence as to the importance of the obligation of states to guarantee international law has aligned the norms of a line of cases in Colombia and Peru.

With regard to the right to an effective remedy, the Inter-American Court’s interpretation of Article 8 and Article 25 of the American Convention has been adopted by the highest courts of several countries. For example, in Argentina, the Code of Criminal Procedure was amended as a result of the Inter-American Court’s decision in Herrera Ulloa v. Costa Rica to ensure the adequacy of Mr. Ulloa’s defense. In Guatemala, an Inter-American Court case overturned a death penalty sentence on a due process claim. Additional decisions along these lines have come out of Peru and Mexico.

With regard to the rights of indigenous peoples, the Inter-American Court has established a framework for juridicial pluralism and nondiscrimination. Against criticism of the imposition of international normative institutional parameters onto indigenous authorities, the Inter-American Court has protected the autonomy of indigenous groups while defending the principles of international human rights. For instance, in Nicaragua, communal property rights of indigenous groups were vindicated by the Inter-American Court. On the other hand, the Constitutional Court of Colombia has defended a strong interpretation of individual rights against the right of an indigenous community to punish offenders of their laws by using the approach of the Inter-American Court.

In constitutional emergencies, protecting the aspirations of the constitution may require either decisions that restrict personal constitutional rights or temporary suspensions of constitutional procedures in favor of more expedient alternatives. Some contemporary authors address the central issue of creating institutional mechanisms to provide such expediency without irreversibly risking arbitrariness or power concentration by relying on judges to resist any attempts by the executive to restrict individual rights or normal procedures of lawmaking.

Rosenkrantz disagrees with this view, arguing that the challenges of constitutional emergencies should be resolved by designing institutions that (1) provide adequate incentives for the executive to refrain from capricious use of emergency powers and to use emergency powers only when strictly necessary for the common good and (2) protect the value of law qua law for society. Rosenkrantz grounds his argument in the Argentinean judicial record, showing that Argentinean judges have been unable to restrain the executive’s use of emergency powers adequately or consistently. Rosenkrantz explains this record by highlighting certain attributes of the judiciary that make it difficult for judges to police the executive, and presents his own view of the value of law qua law in order to propose an institutional mechanism that does not make law subservient to power in times of constitutional emergency.

In this Article, Professor Madrazo and Ms. Vela explore recent cases decided by the Mexican Supreme Court involving sexual and reproductive rights to better understand the development of the court as a constitutional arbiter following constitutional reforms enacted in 1994, which began the Ninth Era of the Supreme Court. Prior to the reforms, the court decided cases, but laws held unconstitutional were simply inapplicable to successful challengers. Following the reforms, the court was able to strike down unconstitutional laws for the first time. Although initially limited to conflicts between political classes, the court has taken on an increasing number of cases concerning citizens directly.

Madrazo and Vela first discuss the background of, and decisions issued in, seven important cases regarding sexual and reproductive freedoms. These cases, involving both the acción de inconstitucionalidad and amparo challenges, were selected by the authors because of what they said, and for what they did not say, about the rights involved.

Following this discussion of cases, Madrazo and Vela provide a more detailed analysis of the rights involved—sexual and reproductive liberty. While both have a common origin, this Article illustrates the different developmental paths that the supreme court has taken with each. Madrazo and Vela explain how sexual liberty has developed as a three-pronged right “from a comparatively feeble mooring in the text of the constitution,” while discussion of reproductive liberty has been largely avoided.

Finally, the authors attempt to compare and understand the “two very different attitudes taken by the court to address similar and interrelated matters regarding similar and interrelated rights.” The “creative and activist court” that deals with the right to sexual liberty is juxtaposed with the “evasive, minimalist court” that is seen in dealing with reproductive liberty. Madrazo and Vela suggest that this may be a result of the complex transition being undertaken by the court as it moves from being a court of law to being a constitutional tribunal.

The intensity of Latin American constitutional change since the mid-1980s spawned literature discussing changes in specific countries, certain aspects of Latin American constitutionalism, and the relationship between Latin American reforms and international institutions. Yet, little has been written about the common features of constitutional development in the region. Professor Uprimny attempts to fill this gap by pointing out the common trends and significant differences among recent Latin American constitutional changes, in order to characterize such reforms and to establish the main challenges to the construction of strong democracies in the region.

Uprimny begins his systematic analysis by presenting the changes to the traditionally dogmatic aspects of constitutionalism, such as Latin American unity, religious tendencies, multicultural values, individual and fundamental rights, international human rights, and the role of the state. Uprimny then characterizes the basic features of such constitutional developments, and considers whether they result in diverse constitutional tendencies rather than national nuances. The Article concludes with a reflection on the potential significance of such constitutional changes and the challenges they post to democracy and constitutional thinking.

Professor Alviar García examines land distribution in Colombia, arguing that changes in legal theory, interactions among legal regimes, and economic-development ideas account for land concentration despite the constitutional and legal provisions that weigh against this concentration. She concludes that new forms of property, including environmentally-protected areas, collective property for indigenous groups, and informal possession, have met resistance from rigid, 19th century understandings of property. Administrative and judicial hurdles and biases toward industrial development have inhibited broader distribution of land in Colombia.

In this Article, Professor Bergallo examines recent adjudication of so-called “second-generation rights,” must notably the right to health. Specifically, she examines right-to-health litigation relating to HIV/AIDS treatment in Argentina. Bergallo first analyzes the initial difficulties that Argentina faced in implementing effective HIV/AIDS treatment before tackling the early litigation meant to correct the deficiencies. Bergallo argues that these early cases, most notably the landmarkBenghalensis decision, resulted in reform at individual, policy, and societal levels. In contrast, the post-Benghalensis landscape has not resulted in similarly sweeping changes, as courts have preferred to render decisions based on individual inadequacy, not systemic failure. Because of this case-by-case curative decision-making, Bergallo argues that the current inequities that are pervasive in the Argentine health system may have been exacerbated.